Opinion
1226 KA 12-01612
11-21-2014
The PEOPLE of the State of New York, Respondent, v. Emario C. ALLEN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, and VALENTINO, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ), attempted assault in the first degree (§§ 110.00, 120.10[1] ), and two counts of robbery in the first degree (§ 160.15[1], [2] ). The conviction arises out of an incident during which defendant shot at one man and missed, and shortly thereafter shot and robbed that man's companion. Contrary to defendant's contention, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), is legally sufficient to support the conviction of attempted assault in the first degree. Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict on that count is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Supreme Court properly refused to redact from defendant's tape recorded statement to the police the interrogating police officer's questions and comments (see People v. Voymas, 39 A.D.3d 1182, 1184, 833 N.Y.S.2d 823, lv. denied 9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892 ) and, in any event, “the ... court's limiting instruction sufficed to avert any potential prejudice” (People v. Jackson, 178 A.D.2d 438, 439, 577 N.Y.S.2d 299 ). The court also properly denied defendant's Batson challenge to the prosecutor's peremptory strike of an African–American prospective juror. The prosecutor explained that he exercised that strike based upon, inter alia, the prospective juror's acquaintance with a prosecution witness, and the court properly accepted that explanation as race-neutral and nonpretextual (see People v. Gant, 291 A.D.2d 912, 912, 736 N.Y.S.2d 820, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229 ). The record supports the court's determination, following a Cardona hearing (see People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306 ), that a prosecution witness was not acting as an agent of the government when defendant made inculpatory statements to him while they were incarcerated (see People v. Young, 100 A.D.3d 1427, 1427–1428, 953 N.Y.S.2d 790, lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 ).
Defendant contends that the court erred in failing to give the limiting instruction required by CPL 310.20(2) when it provided the jury with an annotated verdict sheet distinguishing the two counts of robbery in the first degree (see People v. McCloud, 121 A.D.3d 1286, 1289, 995 N.Y.S.2d 269 ). Contrary to defendant's further contention, the court's failure to give the required instruction does not constitute a mode of proceedings error “that may be reviewed on appeal as a matter of law even in the absence of a timely objection” (People v. Wheeler, 257 A.D.2d 673, 674, 685 N.Y.S.2d 94, lv. denied 93 N.Y.2d 930, 693 N.Y.S.2d 514, 715 N.E.2d 517 ). Inasmuch as defendant failed to make such an objection, the contention is not preserved for our review (see CPL 470.05[2] ; McCloud, 121 A.D.3d at 1290, 995 N.Y.S.2d 269 ), and we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Contrary to defendant's further contention that the court failed to rule on the entirety of his pretrial motion to dismiss the indictment, the record establishes that the court denied the motion “in all respects” (see People v. Dixon, 113 A.D.3d 1104, 1105, 978 N.Y.S.2d 567, lv. denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 ; cf. People v. Spratley, 96 A.D.3d 1420, 1421, 946 N.Y.S.2d 361, following remittal 103 A.D.3d 1211, 959 N.Y.S.2d 348, lv. denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 ). Finally, consecutive sentences were authorized for the separate offenses committed against each victim (see People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 ), and the sentence imposed is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.